Najir S/O Bapulal Desai (S/O Saddam Hussain S/O Najir Desai) v. The State Of Maharashtra

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.1063 OF 2022 Najir S/o. Bapulal Desai

...Petitioner

Versus

State of Maharashtra

...Respondent

......

Mr.Rupesh A. Jaiswal for the Petitioner.

Mr. J.P.Yagnik, APP for the Respondent -State. Mr. Prakash Lomate, Jailor- Group II, Kolhapur Central Prison. ......

CORAM : PRASANNA B. VARALE & S.M. MODAK, JJ.

DATE :

21ST APRIL, 2022 P.C.:

1.

Heard learned counsel appearing for the petitioner and learned APP.

2.

Order was passed by us on 8th April, 2022, making reference to the limited grievance raised by the petitioner in this petition and the grounds raised in challenge to rejection order. The petitioner, who is convict No. C-7592, prayed for grant of emergency parole leave.

3.

Perusal of the impugned order dated 1st August, 2021 shows that application of the petitioner has been rejected on 1/4

three grounds, frstly, various steps taken by the prison authority in view of Covid-19 pandemic outbreak; secondly, assigning a reason that release of the petitioner would cause some disturbance to public peace; and thirdly, assigning a reason that if the petitioner is released on parole leave, he may abscond by misusing the leave granted to him. 4.

Mr. Jaiswal, learned counsel for the petitioner, invited our attention to the order passed by this Court in the matter of Rohit S/o. Sudhir Kamble (who is co-convict with the petitioner) Versus The State of Maharashtra dated 29th March, 2022. It is also submitted that the petitioner is placed in similar circumstance as the petitioner in Rohit S/o. Sudhir Kamble's case.

5.

Perusal of the order dated 29th March, 2022 shows that nearly identical reasons were assigned for rejection and the order was supported by fling afdavit in reply in this Court. By assigning reasons, the petition was partly allowed. The impugned order in the petition was quashed and set aside and respondent-authority was directed to consider the application of petitioner afresh and pass appropriate orders as early as 2/4

possible and not later than two weeks from the date of receipt of the order of this Court.

6.

In the present matter, though reply is not fled, learned APP made available a chart referring to the details of petitioner. 7.

Perusal of the chart shows that the petitioner is in prison for 8 years 1 month and 26 days till the date of submitting the chart. It is further stated that prior to rejection of application, the petitioner was not granted parole or furlough leave on even a single occasion.

8.

Considering these facts, there may not be any dispute to the frst reason assigned by the prison authority. Insofar as second and third grounds assigned by the authority are concerned, there is absolutely no material to form the opinion that in case the petitioner is released, he would disturb the public peace or he would abscond and would not return back to the prison authority. Thus, only on assumption and presumption grounds, the application of petitioner was rejected. Accordingly, rejection order is unsustainable and we pass the following order :

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ORDER

(i)The petition is partly allowed;

(ii) The order impugned in the petition dated 1st August, 2021 passed by the Superintendent, Kolhapur Central Prison, Kalamba is quashed and set aside;

(iii) The respondent-authority is directed to consider the application of the petitioner afresh and pass appropriate orders as early as possible and not later than two weeks from the date of receipt of the order of this Court.

The petition stands disposed of.

9.

All concerned to act upon a copy of this order duly authenticated by the Registry of this Court.

(S. M. MODAK, J.) (PRASANNA B. VARALE, J.) Digitally signed by TRUPTI SADANAND BAMNE Date:

2022.04.25 18:33:07 +0530 TRUPTI SADANAND BAMNE 4/4